Botha and Another v Mthiyane and Another

• Jurisdiction: South Africa

Botha and Another v Mthiyane and Another
2002 (1) SA 289 (W)

2002 (1) SA p289

Citation	2002 (1) SA 289 (W)
Case No	17766/2000
Court	Witwatersrand Local Division
Judge	Claassen J
Heard	March 27, 2001; March 28, 2001; March 29, 2001; March 30, 2001
Judgment	April 2, 2001
Counsel	D T v R du Plessis for the plaintiffs.; V V W Duba for the defendants.

Flynote : Sleutelwoorde B

Defamation — Defences — Qualified privilege — Plaintiffs, employed by SABC in its Language Dubbing Department (LDD), claiming damages from defendants, a production house and its manager, for various letters written by defendants to senior SABC staff and two articles published in newspapers relating to the content of letters — Defendants contending letters not written with intent to defame but to comment on discrimination existing in media and inform C concerned parties about possibility of racism and other misconduct in LDD to facilitate appropriate investigations — Defendants denying responsibility for articles published in newspapers — Allegations of racism and favouritism made in letters prima facie defamatory and inference of unlawfulness arising as result — Defendants seeking to rebut presumption of unlawfulness by D raising defence of qualified privilege, including denial of intent to defame — Defence established if defendants can prove that defamatory statements made on a privileged occasion and that communication relevant to matter under discussion on such occasion — Lack of intent to defame and fact that statements communicated in privileged circumstances proved — Defendants not liable to plaintiffs in delict E for defamatory statements contained in relevant letters — Irrefutable evidence, however, provided that first defendant interviewed by journalist writing offending articles and that articles based on information received during such interview — Defendants jointly and severally liable for defamation arising out of articles published in newspapers. F

Headnote : Kopnota

The plaintiffs instituted action in a Local Division against the defendants for damages arising out of various letters written by the defendants and two articles published in two newspapers. The plaintiffs were employed by the South African Broadcasting Corporation (SABC) in its Language Dubbing Department (LDD). The first G defendant, a black South African falling within the category of a previously disadvantaged person, was the managing director of the second defendant, a close corporation conducting business as a production house to dub television programmes into other languages for broadcasting. The second defendant's main source of business was derived from commissions received from the SABC to produce dubbed H programmes for broadcasting. The plaintiffs based their claims on the contents of letters written to the Human Rights Commission and certain top SABC officials by the first defendant, complaining of perceived unequal distribution of work and unequal treatment of black and white production houses by the LLD and alleging racist policies and favouritism. The defendants contended that the letters had been written, not to defame the plaintiffs, but to comment on discrimination I existing within the media in South Africa and to inform the parties concerned about the possibility of racism and other misconduct in the LLD to facilitate an investigation into the matter. In response to the defamation arising out of the publication of the newspaper articles, the defendants denied being responsible for or causing the relevant publications to be made. J

2002 (1) SA p290

The factual findings made by the Court based on the evidence tendered included that the members of the LLD were not racists or racially A motivated. Furthermore, it was found that, in response to an independent report concerning the broadcasting industry, dubbing projects were to be outsourced, resulting in a diminishing of commissions. The situation worsened when a moratorium on the purchase of new material was introduced by the SABC, further diminishing available dubbing commissions. The first defendant had initially B entered into a partnership with a white-owned company but this consortium had been short-lived, leading to the formation of the second defendant. The LLD had attempted to press the defendants to return to the consortium, threatening to withhold commissions from the first defendant should he open his own production house with its own facilities. More work was allocated to established and historically advantaged production houses by the LLD than to production houses such C as the second defendant, a wholly black-owned concern with its own studio facilities, in spite of the fact that there appeared to be no problem with the product delivered by the second defendant. It appeared that the LLD had, unbeknown to the defendant and other production houses, embarked upon a policy of selecting certain production companies for the assignment of commissions in an attempt to D protect the dubbing industry from total collapse due to the scarcity of work. The second defendant had not been selected by the LLD for the assignment of commissions in spite of the fact that the LLD was duty-bound to implement the official SABC policy of encouraging previously disadvantaged independent producers.

Held, that it appeared from the evidence tendered that the first defendant was entitled to feel aggrieved by the treatment the E second defendant had received at the hands of the LLD. He was entitled to feel that the amount of work allocated to the second defendant, which had first reduced in volume and then ceased altogether, resulted from discriminatory practices contrary to the SABC's proclaimed support of affirmative action and the empowerment of previously disadvantaged people. This frame of mind had led to the F first defendant writing the relevant letters with the intention that the allegations of systemic racism and suspect policies in the allocation of commissions be investigated by the proper authorities. There was no reason to doubt the truth of the first defendant's stated intention in writing the letters. (Paragraphs [45] and [46] at 310A - B/C and 311B/C - D.)

Held, further, that the allegations of racism and favouritism made in the letters were prima facie defamatory G and the defendants had been correct in admitting to this fact. As there had been publication of a statement of a defamatory nature concerning the plaintiffs, an inference of unlawfulness and animus iniuriandi arose. (Paragraphs [49] and [51] at 312F and G/H.)

Held, further, that the defendants had sought to rebut the presumption of unlawfulness by raising the defence of qualified privilege, which in effect included a denial of an intent to defame. H Such defence would be established if the defendants were able to prove that the defamatory statements had been made on a privileged occasion and that the communication had been relevant to matter under discussion on such occasion. In short, this meant that the defendants had to prove on a balance of probabilities the existence of their duty or right to communicate the defamatory statements to another and the latter's reciprocal interest to receive such I communication. (At Paragraphs [55] and [52] at 314C and 313B - C/D.)

Held, further, that although it could be argued that the first defendant had been motivated by self-interest to write the letters, ie to obtain commissions from the LDD, it had to be remembered that, if the first defendant had had the intention to defame the plaintiffs, he would not readily have admitted that they J

2002 (1) SA p291

were not racist. According to the first defendant, it was the implementation of LDD policies which had an unfair racist effect. He A had no axe to grind with the plaintiffs themselves but rather with the basis upon which commissions were allocated by the LDD. What was therefore at stake was whether or not the perception in the mind of the first defendant that he was being discriminated against was justified. If so, he had ample reason to write the letters and document his concerns. (Paragraphs [64] and [65] at 317G and 317J - 318E.) B

Held, further, that the first defendant had not been requesting special treatment, only that he be treated equally. Equality was a core value and entrenched constitutional right and played an important role in the social and economic fabric of South Africa. (At Paragraph [66] at 318F/G - G.)

Held, further, that unlawfulness was determined independently of the defendants' subjective belief in the existence of a privileged occasion impelling them to speak. Whether or C not the publication of a defamatory statement would be protected from penalty by qualified privilege was a matter of legal policy, the boundaries of which were to be set by applying a general criterion of reasonableness. In applying the test of reasonableness, the Court was exercising a value judgment about whether a defendant in the circumstances of any particular case should be accorded legal protection. The test used to determine this was not very stringent. D (Paragraphs [71] and [72] at 321A - A/B, C - C/D and F - F/G.)

Held, further, that any unfair inequality, be it racial or gender discrimination of any kind perpetrated by any of its employees, was of concern to the SABC as it could conflict with its statutory objectives. The SABC would therefore have an express statutory and legitimate interest in receiving information concerning any such inequalities from any production house rendering services to the SABC. E On the other hand, production houses experiencing any perceived inequality or discriminatory practices at the hands of SABC employees which tended to threaten their investment in the broadcasting sector would have a legitimate interest and right to inform...